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TMI Blog2010 (9) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 285 (S.C.). 2. The facts of the case are that the appellant has wrongly debited the excess duty in their PLA Account and accordingly they filed their ER.1 return. After realizing that the appellant has occurred a mistake by debiting excess duty in their PLA Account, they filed a refund claim of the excess duty paid by them along with the certificate issued by the Chartered Accountant that the claim of the appellant is not hit by bar of unjust enrichment. But, the lower authorities rejected the refund claim of the appellant holding that once the ER.1 returns has been filed, without challenging the same, appellant cannot claim the refund of excess duty paid by them. Aggrieved from the said order, the appellant is before me. 3. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Apex Court has clearly held that without challenging the assessment, refund claim is not maintainable. He further submitted that the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.) also held that once duty has been recovered from the buyers same cannot be refunded to the assessee. Hence, the lower authorities has rightly rejected the refund claim filed by the appellants. 5. Heard both sides. 6. On careful examination of the submissions made by both the sides, I find that it is a case where the appellants have filed their ER.1 return regularly and after realizing that they have paid excess duty, they filed the refund claim. It is an admitted fact that the appellant have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 35 of the Central Excise Act should be preferred to the Commissioner (Appeals) against the order passed or decision taken by the Central Excise Officer or sub-ordinate to him. It is difficult to envisage that the said provision of law provides for an appeal against the self assessment. In the case of Gimatex Industries Pvt. Ltd. (supra) this Tribunal has held that the proposition that assessment includes self assessment is not correct for the purpose of appeal under Section 35F of the Central Excise Act, 1944. In this case also neither any decision nor any order of the Central Excise Officer is available. Challenging the same does not arise at all. Accordingly, the case law cited by the appellants are squarely applicable to this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer to examine the same before taking in a decision. In the case of Century Rayon, the Hon ble High Court of Bombay has held that at no point of time the authenticity or correctness of the certificate issued by the Chartered Accountant was disputed therefore the Tribunal has rightly held that the certificate issued by the Chartered Accountant was not disputed at any point of time, the authority was justified on utilizing the certificate. In this case also, the authorities below have not made any comment or rejected the certificate issue by the Chartered Accountant which was before them for consideration. Hence, the rejection of refund claim is not correct. 7. With these observations, the impugned order is set aside and the appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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